Citation NR: 9736309
Decision Date: 10/29/97 Archive Date: 11/04/97
DOCKET NO. 95-17 559 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas D. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1973 to July
1977.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a December 1993 rating decision of a
Regional Office (RO) of the Department of Veterans Affairs
(VA), which denied the veteran service connection for
hypertension. A timely notice of disagreement and
substantive appeal were filed regarding this issue, and it is
now properly before the Board. The issue of service
connection for hypertension is the subject of the remand to
follow this decision.
In December 1994, service connection claims for bilateral
hearing loss and tinnitus were denied by the RO. The veteran
initiated and completed appeals as to these issues, and they
are therefore also in appellate status.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends his current bilateral hearing loss and
tinnitus are a direct result of exposure to persistent loud
noises in service; hence, service connection is warranted
regarding these claims.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that service connection is
warranted for bilateral hearing loss and for tinnitus.
FINDINGS OF FACT
1. The veteran’s bilateral hearing loss is due to or the
result of active duty service.
2. The veteran’s tinnitus is due to or the result of active
duty service.
CONCLUSION OF LAW
1. The veteran’s bilateral hearing loss was incurred in
service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38
C.F.R. §§ 3.303, 3.385 (1996).
2. The veteran’s tinnitus was incurred in service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R.
§§ 3.303 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Background
Review of the service medical records indicates the veteran
was given several audiological examinations while in service.
According to his June 1973 service entrance examination, he
recorded the following audiological scores at the time of
enlistment:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
Not
tested
5
LEFT
10
5
5
Not
tested
5
By March 1976, his hearing scores were:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
5
30
20
LEFT
15
5
10
40
35
At the time of his June 1977 separation examination, his
hearing levels were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
30
20
20
LEFT
15
0
10
35
35
In November 1994, the veteran filed a claim for service
connection for bilateral hearing loss and tinnitus. He
argued that his service as a boiler technician, which
involved persistent exposure to loud machinery, resulted in
his current bilateral hearing loss and tinnitus. Both the
veteran’s service connection claims were denied in a December
1994 rating decision.
The veteran testified on his own behalf at a June 1995 RO
hearing. He reported that his duty as a boiler technician
involved almost constant exposure to a large turbine in the
engine room of a naval vessel. Also present in the veteran’s
work area were blowers, pumps, and other large machines, for
which hearing protection was never required. Each time he
left his work area his ears would ring and he would have to
adjust to the relative quiet outside the engine room. He
worked in such an environment for 3 1/2 of his 4 years of
service. The veteran “definitely” felt his hearing declined
during his term of service.
In July 1995, the veteran was given a VA audiological
examination, which yielded the following audiological scores,
in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
25
50
50
LEFT
25
25
50
55
60
Speech audiometry revealed speech recognition ability of 88
percent in the right ear and of 84 in the left ear. Mild to
moderate bilateral sensorineural hearing loss was diagnosed.
His complaints of a constant, moderate, whistling noise,
which becomes more severe after loud noises, were also noted.
Analysis - Bilateral hearing loss and tinnitus
The veteran contends service connection is warranted for
bilateral hearing loss and tinnitus. Service connection may
be granted for disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. §§ 3.303, 3.304, 3.385.
The Board begins by noting that for the purposes of applying
the laws administered by VA, impaired hearing will be
considered to be a disability when the auditory threshold in
any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is
40 decibels or greater; or when the auditory thresholds for
at least three of the frequencies 500, 1000, 2000, 3000, or
4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. 38 C.F.R. § 3.385 (1996). Therefore, the July
1995 VA audiological examination clearly establishes a
current diagnosis of bilateral hearing loss. Also, the
veteran’s complaints of tinnitus are noted and determined to
be consistent with that diagnosis.
However, review of the service medical records shows that
hearing loss was not present in service as defined by 38
C.F.R. § 3.385 (1996). Nevertheless, the United States Court
of Veterans Appeals (Court) has held that when audiometric
tests at the veteran’s separation from service do not meet
the regulatory requirements under 38 C.F.R. § 3.385, a
veteran may nevertheless establish service connection for
current hearing disability by showing that the current
disability is causally related to service. Hensley v. Brown,
5 Vet.App. 155, 160 (1993). In the present case, a
longitudinal review of the documented audiometric tests
conducted in service clearly shows a steady decline in
hearing acuity, although the 38 C.F.R. § 3.385 requirements
for hearing disability were not met.
Considering the veteran’s testimony regarding the
circumstances of his service in light of the medical
evidence, the Board finds the negative evidence and the
positive evidence pertinent to both service connection claims
to be in relative equipoise. The clear rate of decline
during service of the veteran’s audiological scores is
consistent with his testimony regarding both hearing loss and
tinnitus during service. Furthermore, the recent VA
audiological examination establishes current audiological
disabilities. The persistent acoustic trauma of exposure to
large turbines and other heavy machinery suggests the
possibility of later hearing loss and tinnitus. Under
38 U.S.C.A. § 5107(b), when the positive and negative
evidence is in balance, the veteran is to be given the
benefit of the doubt. This being the case, the Board has
determined that service connection is warranted for both
bilateral hearing loss and tinnitus.
ORDER
Entitlement to service connection for bilateral hearing loss
is granted.
Entitlement to service connection for tinnitus is granted.
REMAND
The veteran has applied for service connection for
hypertension. In his initial claim, he reported that he
received treatment for this disorder from a “Dr. Johnson” in
Walterboro in 1979. Of record is a March 1994 letter from
John B. Johnston, M.D., of Walterboro, South Carolina, to the
effect that he was currently treating the veteran and that
the veteran had been under his care since 1980. In view of
the nature of the veteran’s claim, the Board believes an
effort should be made to obtain all clinical records from Dr.
Johnston regarding treatment of the veteran over the years.
At this point, the Board would also stress to the veteran
that that statutory law as enacted by the Congress charges a
claimant for Department of Veterans Affairs (VA) benefits
with the initial burden of presenting evidence of a well-
grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A well-
grounded claim has been defined by the Court as "a plausible
claim, one which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91
(1990). Where the determinative issue involves a medical
diagnosis, competent medical evidence to the effect that the
claim is "plausible" or "possible" is required. Grottveit v.
Brown, 5 Vet.App. 91, 92-93 (1993). A claimant therefore
cannot meet this burden merely by presenting lay testimony
and/or lay statements because lay persons are not competent
to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App.
492 (1992). Consequently, lay assertions of medical
causation cannot constitute evidence to render a claim well-
grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no
cognizable evidence is submitted to support a claim, the
claim cannot be well-grounded. Tirpak v. Derwinski, 2
Vet.App. 609, 611 (1992).
The Court has further indicated that in order for a service
connection claim to be well-grounded, there must be competent
evidence: i) of current disability (a medical diagnosis);
ii) of incurrence or aggravation of a disease or injury in
service (lay or medical evidence), and; iii) of a nexus
between the inservice injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498, 506 (1995). By this remand, the Board is informing the
veteran of the requirements of a well-grounded claim. 38
U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8
Vet.App. 69 (1995).
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should ensure that all VA
records of treatment are associated with
the claims folder. The RO should also
contact Dr. John B. Johnston and request
copies of all clinical records
documenting treatment of the veteran
over the years. Any records obtained as
a result of this request should be
associated with the claims file.
2. After completion of all requested
development, if other development is felt
necessary it should be accomplished. The
RO should then review the veteran’s claim
for service connection for hypertension.
If the action taken remains adverse to
the veteran, he and his representative
should be furnished with a supplemental
statement of the case. They should then
be afforded a reasonable opportunity to
respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if such is warranted. The
Board intimates no opinion as to the ultimate outcome of this
case. The appellant need take no action unless otherwise
notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ALAN S. PEEVY
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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